Jackson v Deputy Commissioner Gollschewski - [2017] QCAT 464

CITATION:

Jackson v Deputy Commissioner Gollschewski [2017] QCAT 464

PARTIES:	Paul Jackson (Applicant)
v
Deputy Commissioner Steve Gollschewski (Respondent)

APPLICATION NUMBER:

OCR094-17

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 and 29 November 2017

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

DELIVERED ON:

22 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Deputy Commissioner that Mr Jackson was guilty of misconduct is confirmed in respect of Ms B, Ms C and Ms D in incidents B1, B2, B3, B4, C1, C2, C3, C4, D1 and D2.

2. In all other respects concerned with substantiation the decision of the Deputy Commissioner is set aside.

3. The application is listed for 9.30am on 2 March 2018 to consider sanction.

4. Pursuant to section 66 of the Queensland Civil and Administrative Act 2009 (Qld), the publication of the name of any person referred to in this decision other than a party, and the publication of any information that may enable such a person to be identified, is prohibited.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where male officer had a personal relationship with a female officer under his command – where male officer was alleged sexually to have harassed the female officer and another female officer and other women – where Deputy Commissioner found all incidents substantiated – whether on review the incidents are substantiated – whether the substantiated incidents amounted to misconduct

Anti-Discrimination Act 1991 (Qld), s 119
Crime and Corruption Act 2001 (Qld), s 219BA
Police Service (Discipline) Regulations 1990 (Qld), s 3, s 9
Police Service Administration Act 1990 (Qld),
s 1.4, s 7.4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Aldrich v Ross [2001] 2 Qd R 235
Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123
Flegg v Crime and Misconduct and Anor [2013] QCA 376
Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348

APPEARANCES AND REPRESENTATION:

APPLICANT:

Matt Black counsel, instructed by Gilshenan & Luton Legal Practice

RESPONDENT:

S A McLeod counsel, instructed by Queensland Police Service Legal Unit

REASONS FOR DECISION

On 2 May 2017 the Deputy Commissioner of Police decided that Paul Jackson, then Detective Senior Sergeant Jackson, should be dismissed from the Queensland Police Service for misconduct. Mr Jackson had been a police officer for some 30 years having joined the service in early 1987.
The alleged misconduct occurred during a time when Mr Jackson was officer in command at the Child Protection and Investigation Unit (CPIU) at Surfers Paradise.
The allegations against Mr Jackson emerged in about late February 2015 when Ethical Standards Command was notified by a senior officer about concerns about sexual harassment. On 12 March 2015 Mr Jackson was stood down pending the result of an investigation. He has not been back to work since then.
The investigation resulted in a report dated 4 December 2015 which recommended that there be a disciplinary hearing.
Mr Jackson was called to a disciplinary hearing on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QCAT 464
Decision Date: 22 December 2017

CaseChat Overview and Summary

In Jackson v Deputy Commissioner Gollschewski, the applicant, Mr Jackson, sought judicial review of a decision by the Deputy Commissioner of Police that he had engaged in misconduct. The misconduct in question related to his personal relationship with a female officer under his command, as well as allegations of sexual harassment involving the female officer and another female officer, Ms C and Ms D, and other women. The Deputy Commissioner found all incidents substantiated and terminated Mr Jackson’s employment.

The primary legal issue before the court was whether the Deputy Commissioner’s findings of fact, in particular those concerning the alleged sexual harassment, were supported by the evidence. The court needed to determine if the Deputy Commissioner's findings were open to him on the evidence, and whether the substantiated incidents amounted to misconduct warranting disciplinary action.

The court found that the Deputy Commissioner’s findings concerning Ms B, Ms C, and Ms D in incidents B1, B2, B3, B4, C1, C2, C3, C4, D1, and D2 were substantiated and affirmed the Deputy Commissioner's decision in those respects. However, the court set aside the Deputy Commissioner's findings in all other respects concerned with substantiation. The court held that the Deputy Commissioner’s findings regarding the other female officers were not supported by the evidence. Regarding the incidents involving Ms B, Ms C, and Ms D, the court found that the Deputy Commissioner's conclusion that the substantiated incidents amounted to misconduct was open to him on the evidence.

The court confirmed the Deputy Commissioner’s decision that Mr Jackson was guilty of misconduct concerning Ms B, Ms C, and Ms D in the specified incidents. The decision of the Deputy Commissioner in all other respects concerned with substantiation was set aside. The application was listed for 9.30am on 2 March 2018 to consider the appropriate sanction. The court also ordered that the publication of the name of any person referred to in this decision other than a party, and the publication of any information that may enable such a person to be identified, was prohibited.

Orders

Orders of the court

1. The decision of the Deputy Commissioner that Mr Jackson was guilty of misconduct is confirmed in respect of Ms B, Ms C and Ms D in incidents B1, B2, B3, B4, C1, C2, C3, C4, D1 and D2.

2. In all other respects concerned with substantiation the decision of the Deputy Commissioner is set aside.

3. The application is listed for 9.30am on 2 March 2018 to consider sanction.

4. Pursuant to section 66 of the Queensland Civil and Administrative Act 2009 (Qld), the publication of the name of any person referred to in this decision other than a party, and the publication of any information that may enable such a person to be identified, is prohibited.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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